Combat-related PTSD in military court: A diagnosis in search of a defense

International Journal of Law and Psychiatry 39 (2015) 23–30

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International Journal of Law and Psychiatry

Combat-related PTSD in military court: A diagnosis in search of a defense☆ Landy F. Sparr Oregon Health and Science University, Department of Psychiatry (OP02), 3182 SW Sam Jackson Park Rd., Portland, OR 97239, United States

a r t i c l e

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Available online 16 February 2015 Keywords: PTSD Court-Martials Mental status defenses

a b s t r a c t As more veterans return from Iraq and Afghanistan, Posttraumatic Stress Disorder (PTSD) often returns with them. As a result, PTSD has quickly become the most prevalent mental disorder diagnosis among active duty United States (U.S.) military. Although numerous studies have not only validated PTSD but have chronicled its negative behavioral impact, it remains a controversial diagnosis. It is widely diagnosed by all types of mental health professionals for even minimal trauma, and DSM-IV PTSD criteria have wide overlap with other mood and anxiety disorders. This, however, has not stopped PTSD from being used in civilian courts in the U.S. as a mental disorder to establish grounds for mental status defenses, such as insanity, diminished capacity, and self-defense, or as a basis for sentencing mitigation. Not surprisingly, PTSD has recently found its way into military courts, where some defense attorneys are eager to draw upon its understandable and linear etiology to craft some type of mental incapacity defense for their clients. As in the civilian sphere, this has met with mixed success due to relevance considerations. A recent court-martial, U.S. v. Lawrence Hutchins III, has effectively combined all the elemental nuances of PTSD in military court. © 2015 Elsevier Ltd. All rights reserved.

1. Introduction The military Manual for Courts-Martial (MCM) allows for (a) mental status defenses, such as lack of mental responsibility, which is an affirmative defense and (b) “partial mental responsibility,” which is a non-affirmative defense (Manual for Courts-Martial United States, 2012a). An affirmative defense relieves a defendant of liability even though the plaintiff or prosecution has proven all elements of the offense. In the United States, in civilian jurisdictions, “partial mental responsibility” is usually called diminished capacity. This article examines the inclusion of post-combat, military-related Posttraumatic Stress Disorder (PTSD) as a consideration in litigation strategy by military defense attorneys. The putative influence of PTSD on a defendant's criminal intent has been a central issue at several recent military court-martials. In fact, it is apparent that this question, which surfaced after previous armed conflicts (e.g., Vietnam), has not entirely been put to rest in that these recent trials have once again tested the limits of PTSD as a mental incapacity defense, and have even raised the question of whether repetitive stress can lead to the perception of the need to kill proactively (Berger, McNiel, & Binder, 2012; Hafemeister & Stockey, 2010; Sparr & Atkinson, 1986; Sparr, Reaves, & Atkinson, 1987). PTSD is now by a wide margin the most common compensable mental disorder and the prevalence of PTSD-based service connected disability has increased at an alarming rate. Between 1999 and 2010, the number of veterans who receive service-connected disability for ☆ Disclosures of financial or other potential conflicts of interest: None. E-mail address: [email protected].

http://dx.doi.org/10.1016/j.ijlp.2015.01.017 0160-2527/© 2015 Elsevier Ltd. All rights reserved.

PTSD increased from 120,265 to 501,280 (Department of Veterans Affairs, 2011). Returning veterans from wars in and around Afghanistan (Operation Enduring Freedom) and Iraq (Operation Iraqi Freedom) have likely contributed substantially to the increase. The recent Department of Veterans Affairs (DVA) regulation liberalizing evidentiary criteria for PTSD claims is likely to further accelerate both the rate of PTSD claims and awards (Department of Veterans Affairs, 2010a). Under the new rule, the Veterans Administration (VA) no longer requires the corroboration of a stressor related to hostile military or terrorist activity, if a VA evaluator confirms that the stressful experience recalled by the veteran adequately supports the PTSD diagnosis and the veteran's symptoms appear to be related to the claimed stressor. Previously, claims adjudicators were required to seek corroboration that a veteran actually experienced a stressor related to hostile military activity (Department of Veterans Affairs, 2010b). This article will first address the increasing diagnostic prevalence of PTSD, and then discuss problems with the diagnosis itself, before addressing the medico-legal issues in military court. Using a recent case illustration, it will show how PTSD factored into defense strategy in four alternative ways and how each concept ultimately had to be discarded. 2. PTSD prevalence After three decades of research, the definitive answer regarding the prevalence of PTSD in the military is still lacking but point prevalence rates have ranged from 2–17% and lifetime prevalence from 6–31% (Dohrenwend et al., 2006; Kulka et al., 1990; Richardson, Frueh, & Acierno, 2010). Studies of veterans from the combined conflicts in Iraq

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and Afghanistan report a PTSD point prevalence from 4–17.1% (Hoge, Auchterlonie, & Milliken, 2006; Hoge et al., 2004; Seal, Bertenthal, Miner, Sen, & Marmar, 2007). Various factors have affected these rates, including combat role and cultural background, as well as methodological issues such as sampling strategies, measures, and diagnostic criteria. In addition to service connected disability claims, the United States Army reports an avalanche in the number of Iraq war veterans with PTSD, with one report indicating that the prevalence of PTSD among these veterans may be as high as 20% (Hoge et al., 2004). This may in part be related to the persistent and ongoing fear of hostile or terrorist activities in Iraq. Friedman (2004) suggested that the current figures underestimate the level of PTSD in Iraq war veterans because a lag ranging from days to many years occurs between the time someone experiences trauma and the time when symptoms of PTSD are reported. Projections have been made that ultimately 35% (or about 300,000) of the soldiers deployed to Iraq will suffer from PTSD. Similar concerns have been voiced about Afghanistan war veterans (Schell & Marshall, 2008). 3. Problems with the PTSD diagnosis Amid the reports of increased incidence of PTSD in war veterans, concern has been voiced about the validity of the PTSD diagnosis itself. Many observers have noted that PTSD diagnostic criteria are not particularly objective and defining symptoms are nonspecific (Atkinson, Henderson, Sparr, & Deale, 1982; Barglow, 2012; Brewin, 2003; McHugh & Treisman, 2007; Rosen & Lilienfeld, 2007). For example, problems with attention, concentration, and “insomnia” are common to thirty-two other diagnostic classifications and another hallmark of PTSD, irritability, is common to twenty-three others (Sparr, Scott, Fergueson, Gannon, & Newman, 2011). In one sample of outpatients with PTSD seeking treatment, 98% had another Axis I psychiatric diagnosis (Brown, Campbell, Lehman, Grisham, & Mancill, 2001). This has raised the concern that PTSD, at least on some occasions, is simply an amalgam of other disorders. When formulated, PTSD was defined in the Diagnostic and Statistical Manual of Mental Disorders, Third Edition (American Psychiatric Association, 1980) as a disorder that arose from a specific set of traumatic stressors. As a result, the origins of the PTSD definition are related to a specific etiology (criterion A), but studies have shown that the disorder can develop after a variety of non-life threatening events (e.g., divorce, financial difficulties) that are excluded from criteria A (Rosen, Spitzer, & McHugh, 2008; Spitzer, First, & Wakefield, 2007). Bodkin, Pope, Detke, and Hudson (2007) have postulated that symptoms of PTSD are not necessarily caused by trauma. In their study, 103 outpatients presenting for pharmacological treatment of depression were also examined for symptoms of PTSD. Two blind raters subsequently judged whether subjects' experiences met DSM-IV (American Psychiatric Association, 1994) criteria for trauma (criterion A). Among 54 subjects scored by both raters as having experienced trauma, 42 (78%) met all other criteria for PTSD. Among 36 subjects scored by both raters as not having experienced trauma, 28 displayed all other DSM-IV criteria for PTSD — also a rate of 78%. Bodkin et al. concluded that this equivalence suggests that in a treatmentseeking population, caution should be exercised in attributing PTSD symptoms to trauma. In short, this and other studies have shown that criterion A events alone are neither necessary nor sometimes even sufficient to produce PTSD symptoms. Instead, they appear to represent high magnitude stressors that are otherwise indistinct from the full range of stressors that can have an impact on an individual and create risk of psychiatric morbidity (Rosen et al., 2008). The PTSD diagnosis also has been criticized because it is thought to rely excessively on clinical judgment and patient report (Nielssen & Large, 2008; Scott & Stradling, 1994). This in turn suggests that the diagnosis might be susceptible to patients' attempts to deceive. A 1994 study by Lees-Haley and Dunn reported that 86% of untrained subjects could

discern which symptoms on a checklist to endorse to qualify for a PTSD DSM-IIIR (American Psychiatric Association, 1987) diagnosis. Pressure for a PTSD diagnosis may arise when patients are involved in personal injury or workers' compensation claims. Unlike depression or other psychiatric diagnoses that can be caused by multiple factors unrelated to a legal claim, a PTSD diagnosis is said to be incident-specific, which supposedly determines causation. This apparent connection was noted after PTSD was first included in the DSM-III in 1980 and personal injury lawsuits in federal court increased more than 50% in the next decade (Olson, 1991). 4. Malingered PTSD There have been numerous anecdotal studies, but statistics indicating prevalence, incidence, and base rates of malingering in military populations are unknown. A retrospective analysis of 116 consecutive disability pension examinations for combat-related PTSD found that 25.4% of the 63 claimants who were diagnosed with PTSD were suspected of malingering based on MMPI-II validity indicators (Morel, 1996; Morel, 2010). In a study of veterans diagnosed with chronic PTSD and subsequently referred to a VA residential treatment clinic, Freeman, Powell, and Kimbrell (2008) found clear evidence of symptom exaggeration on objective testing of 53% of the veterans. Frueh et al. (2005) examined the military personnel records of 100 consecutive patients assessed for PTSD in a Veterans Administration (VA) hospital who had reported war-related trauma in Vietnam. When the investigators attempted to validate self-reports of stressor exposure, the corroboration rate was only 41% even though 94% had received a PTSD diagnosis. Furthermore, 7% of the entire sample had no evidence in their files of having served in Vietnam, and of these, 2% apparently never served in the military. Responding to this and similar studies, McNally and Frueh (2012) decried the fact that clinicians who evaluate veterans for service-connected disability pensions within the Department of Veterans Affairs (DVA) are rarely able to use recommended best practices to assess PTSD. Knoll and Resnick (2006) have listed clinical indicators of malingered combat-related PTSD, and Hall and Hall (2006) have presented an extensive overview of forensic and diagnostic considerations in detecting authentic PTSD. Unfortunately, there is no definitive way to uncover malingering because at the present time there is no method or single instrument that is universally recognized as being the best detection tool. Although there are scores of tests available to assist in the detection of malingering, in general, only a few have been validated. Tests that have been shown to be among the most reliable for the general detection of malingering are the Structured Interview of Reported Symptoms [SIRS] (Rogers, Bagby, & Dickens, 1992) and the Minnesota Multiphasic Personality Inventory-2 [MMPI-2] (Butcher, Dahlstrom, Graham, Tellegen, & Kaemmer, 1989; Keane, Malloy, & Fairbank, 1984). The Miller Forensic Assessment of Symptoms Test [M-FAST] (Jackson, Rogers, & Sewell, 2005) and Trauma Symptom Inventory [TSI] (Briere, 1995; Elhai et al., 2005) have received the most validation for detecting malingered PTSD (Knoll & Resnick, 2006). New versions of these tests are the Minnesota Multiphasic Personality Inventory-2Restructured Form [MMPI-2-RF] (Ben-Porath & Tellegen, 2008), the Structured Interview of Reported Symptoms-2 [SIRS-2] (Rogers, Sewell, & Gillard, 2010), and the Trauma Symptom Inventory-2 [TSI-2] (Briere, 2011). 5. PTSD as a criminal defense As PTSD has aged as an official psychiatric diagnosis, its forensic face has changed as well. Initial enthusiasm for PTSD as a criminal defense has waned, and initial fears of misuse have not materialized. Instead, the uses of PTSD as a criminal defense have been primarily as an occasional factor in pre-trial plea-bargaining and diminished capacity considerations at trial, and as a mitigating factor in post-trial sentencing

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(Sparr, 2007). The more significant growth of PTSD in forensic deliberations has been in the civil arena (e.g., disability, tort actions). Despite this apparent caution on the part of defense attorneys, PTSD is still in use in criminal proceedings and, as veterans of the Iraq and Afghanistan wars return, PTSD claims are once again a small but noticeable factor in civilian criminal trials (Cohen & Appelbaum, 2013), and have resurfaced as a defense factor in military court-martial. Because generally those with PTSD have not lost touch with reality, and can appreciate wrongfulness, it is difficult to establish PTSD as a criminal defense. Consequently, for a PTSD-afflicted veteran to successfully raise an insanity defense, for example, the court must first recognize PTSD as a relevant mental disorder. PTSD severity may be an issue. van der Kolk (1996) has described a cohort of severely traumatized individuals found to have significant alteration in regulation of affect and impulses that could result in perceptual deficits akin to temporary loss of touch with reality. He has proposed criteria for Disorders of Extreme Stress, Not Otherwise Specified (DESNOS). Most were victims of severe childhood trauma. Although DESNOS has empirical support (van der Kolk, 1996), it is not an official psychiatric Diagnostic and Statistical Manual (DSM-IV) diagnosis. Black's Law Dictionary defines the insanity defense as “an affirmative defense alleging the mental disorder caused the accused to commit the crime” (Garner, 2009, p 865) While the insanity defense is by no means a new concept, it has evolved over time and today different jurisdictions in the United States recognize different tests of insanity. Moreover, jurisdictions offer different views regarding which mental disorders make a defendant eligible for the defense (American Academy of Psychiatry & the Law Guidelines, 2012). In the United States, a defendant who is mentally ill may plead not guilty by reason of insanity (“excuse defense”). Another possibility is that the defendant does not meet the mens rea (state of mind) requirement of the offense. For most crimes the prosecution must prove criminal intent. Mens rea defenses are partial defenses that can negate a specific intent to commit a crime and thereby result in a defendant being found guilty of either a lesser-included crime or not guilty at all (Hart, 1968; Kadish, Schulhofer, & Steiker, 2007). This is based on the belief that certain people, because of mental impairment or disease, are simply incapable of reaching the mental state required to commit a particular crime. Modern formulations of the insanity defense are generally derived from the M'Naghten's Case (1843) and are often referred to as the cognitive test because of the emphasis on assessment of the defendant's cognitive capacity to distinguish between right and wrong. Like all U.S. iterations of the insanity test, this standard requires, as a foundational prerequisite for the defense to succeed, that a mental disorder existed at the time of the offense. Consequently, to successfully raise an insanity defense, a PTSD afflicted veteran, the court must first recognize PTSD as constituting a relevant mental disorder. Besides the M'Naghten rule, there is one other main U.S. test of insanity, found in The Model Penal Code of the American Law Institute (ALI) (Model Penal Code, 1962). The M'Naghten standard is the stricter of the two because the defendant must show that by virtue of a mental disease or defect he did not know the nature and quality of his act or did not know that the act was wrong at the time it was committed. The ALI standard is a two-part test that provides that a person is not responsible for criminal conduct at the time it was committed if, as a result of a mental disease, he lacks substantial capacity to appreciate the criminality (wrongfulness) of his conduct or conform his conduct to the requirements of the law. A PTSD insanity defense is presumably most successful in the jurisdictions that have adopted the ALI test because the defendant could be judged insane even though he was able to appreciate the wrongfulness of his act. The phrase “to conform his conduct to the requirements of the law” seems most appropriate for defendants who may be acting involuntarily as in a dissociative state. If the same defendant is tried in a jurisdiction using M'Naghten, he has a greater burden of proof to show that he did not understand either the wrongfulness or the nature and quality of his act. For all practical purposes a defendant

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must be grossly delusional in order to be acquitted under the M'Naghten test (Brotherton, 1981). 6. Manual for Courts-Martial Particularly in the past twenty-five years, PTSD has been used in civilian courts throughout the U.S. as a basis for defenses of insanity, extreme emotional disturbance, diminished capacity, unconsciousness due to a dissociated state, and self-defense (Apostle, 1980; Sparr & Pitman, 2007). In the U.S. military justice system, the Manual for Courts-Martial (MCM) delineates mental disorder defenses in the following manner: The insanity defense is called “lack of mental responsibility.” “It is an affirmative defense to any offense that, at the time of the commission of the acts constituting the offense, the accused, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his or her acts. Mental disease or defect does not otherwise constitute a defense.”. [Manual for Courts-Martial United States (2012b)] This is a variation of the M'Naghten defense. Diminished capacity is referred to as “partial mental responsibility” and, as in civilian court, it is specified that it is “not an affirmative defense.” “Evidence of a mental condition not amounting to a lack of mental responsibility may be admissible as to whether the accused entertained a state of mind necessary to be proven as an element of the offense. The defense must notify the trial council before beginning of trial on the merits if the defense intends to introduce expert testimony as to the accused's mental condition”. [Manual for Courts-Martial United States (2012c)] In addition, the accused is presumed to have been mentally responsible at the time of the alleged offense. This presumption continues until the accused establishes, by clear and convincing evidence, that he or she was not mentally responsible. The MCM also allows the defenses of heat of passion and selfdefense. The first of these is subsumed under “heat of passion” in Article 119, Manslaughter. “Any person…who with an intent to kill or inflict great bodily harm, unlawfully kills a human being in a heat of sudden passion caused by adequate provocation is guilty of voluntary manslaughter and shall be punished as a court-martial may direct.” (Manual for Courts-Martial United States, 2012d). “…Heat of passion may result from fear or rage. A person may be provoked to such an extent that in the heat of sudden passion caused by the provocation, although not necessarily in defense of life or to prevent bodily harm, a fatal blow may be struck before self-control has returned. Although adequate provocation does not excuse the homicide, it does preclude conviction of murder…the provocation must be adequate to excite uncontrollable passion in a reasonable person and the act of killing must be committed under and because of the passion, however, the provocation must not be sought or induced as an excuse for killing or doing harm. If judged by the standard of a reasonable person, sufficient cooling time elapses between the provocation and the killing, the offense is murder even if the accused's passion persists.” [Manual for Courts-Martial United States (2012e)] Self-defense also is allowed in the Uniform Code of Military Justice and is addressed in the MCM. “It is a defense to homicide, assault involving deadly force or battery involving deadly force that the accused: A) apprehended, on reasonable grounds, that death or grievous bodily harm was about to be inflicted wrongfully on the accused; and B) believed that the force the accused used was necessary for protection

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against death or grievous bodily harm.” (Manual for Courts-Martial United States, 2012f). “The test for the first element of self-defense is objective. Thus, the accused's apprehension of death or grievous bodily harm must be one that a reasonable, prudent person would have held under the circumstances. Because this test is objective, such matters as intoxication or emotional instability of the accused are irrelevant. On the other hand, such matters as the relative height, weight, and general build of the accused and the alleged victim, and the possibility of safe retreat are ordinarily among the circumstances that should be considered in determining the reasonableness of the apprehension of death or grievous bodily harm. The test for the second element is entirely subjective. The accused is not objectively limited to the use of reasonable force. Accordingly, such matters as the accused's emotional control, education and intelligence are relevant in determining the accused's actual belief as to the force necessary to repel the attack.” [Manual for Courts-Martial United States (2012g)]

7. The court-martial of Sergeant Lawrence Hutchins On June 21, 2006, Sergeant Lawrence Hutchins of the U.S. Marine Corps was charged with the offenses under the Uniform Code of Military Justice of larceny, house breaking, kidnapping, making false official statements, murder, and obstruction of justice in order to affect a conspiracy (United States of America v Hutchins, 2010). Sgt. Hutchins, who was assigned as a squad leader, had arrived in Iraq in April 2006 and joined his platoon that had already begun its tour in January 2006 in an area called Zidon. Hutchins was serving his first tour in Iraq, but his squad included several marines who had previous combat tours. After serving in Zidon for a couple of months, Hutchins' platoon was moved to the Hamdania area because an insurgent group from Zidon was reportedly moving its operations to Hamdania. The platoon was familiar with the operations of the insurgent group and was ordered to patrol the village of Hamdania, gather intelligence, and plan and execute raids to capture suspected insurgents, and bring them in for questioning or detention. Sgt. Hutchins' platoon was tasked with maintaining constant counter-Improvised Explosive Device (IED) ambush positions throughout its area of operation. The objective was to maintain surveillance on likely IED placement positions in an effort to capture or kill individuals placing IEDs. The marines were permitted to treat the emplacement of an IED as a hostile act and to use deadly force to prevent it. One individual in the squad, Corporal Trent Thomas, who later would be implicated with Sgt. Hutchins and also court-martialed, stated that they were “sick and tired of getting bombed” (Marine pleads guilty to murder in Iraqi civilian's death last year). Another member of their squad, Corporal Marshall Magincalda, said that he and his comrades were angry. They had endured insurgent attacks but lacked evidence against the man they suspected was responsible. He said that they warned this individual that if any more bombs went off, they would pay him a visit. When another blast occurred a week later, they hatched a plan for revenge (Watkins, 2007). The incident that led to the primary allegations against Sgt. Hutchins occurred on April 25–26, 2006. Sgt. Hutchins' squad was sent from their patrol base to conduct a counter-IED ambush in the village of Hamdania. On this occasion, the squad was particularly interested in a man named Saleh Gowad, who they suspected was an insurgent in their area of operation. He was listed as a high value individual (HVI) on a list given to Sgt. Hutchins' platoon. A source of frustration for the platoon was that some previously detained HVIs were released by higher headquarters. The marines thought of this as a failure of the detention system and believed it significantly compromised their security. According to Sgt. Hutchins' later statement to investigators, due to the failure of the system and the squad's desire to remove Saleh Gowad, he developed a

plan to kill Gowad and make it look as if he had been setting up an IED by the side of the road. Squad members were told of the plan and given the option of participating. All eight members agreed. Some volunteered to go to Gowad's house just past midnight and abduct him. If Gowad could not be located, the squad decided to try to get one of his brothers. They knew that this would send a message to Gowad and also be retribution for marine “brothers” who they believed Gowad was responsible for killing. The plan went awry, however, when neither Gowad nor his brothers could be located and a cousin was substituted and killed. Four members of the squad had been assigned to capture Gowad and four others were stationed back by an old IED hole. Such holes were commonly reused for the placement of new IEDs, so it would not seem unusual to have someone put a new IED in an old IED hole. Once captured, Gowad would be flex-cuffed, left in the hole and the four members of the squad would then rejoin the remaining four members of the squad in an ambush position across from the IED hole and fire on Gowad. They would report the incident to the platoon commander as a valid engagement. That would have been the end of the matter but several days after the cousin was killed, a local sheik reported to the battalion commander that a local man had been kidnapped and killed by the marines. The commander did not believe him, but wanted an investigation nonetheless. Hutchins, who was one of those stationed by the old IED hole, later stated that he did not know that the wrong man had been brought back until after the man was dead. Sgt. Hutchins and his seven squad members were charged with homicide when the murder plot was discovered. Sgt. Hutchins returned from Iraq in May 2006 and was placed in the brig in Camp Pendleton, California. When he first returned he reported seeing some images of warfare on television and that night had an extremely disturbing nightmare. After that, he began to have distressing nightmares regularly. He had a repetitive nightmare about being under fire in combat and being unable to respond. In this dream, he was always going uphill and getting nowhere. He reported sometimes waking up in the middle of the night, screaming. He tried to avoid images of warfare but sometimes experienced intrusive images of his time in Iraq. An evaluator reported that Hutchins lost interest in former activities and felt estranged from others. He believed that those who had not had the same experiences could not understand. He had difficulty falling asleep and staying asleep. He also experienced increased irritability and outbursts of anger. He reportedly complained of persistent anxiety, particularly at night. Hutchins did not report head trauma while deployed. A marine psychiatrist started him on medication after finding that Hutchins met the psychiatric Diagnostic and Statistical Manual (DSM-IV) criteria for PTSD. This diagnosis was never in dispute. 1. Sgt. Hutchins' psychiatric defense Many combat veterans have developed PTSD, and the fact that Sgt. Hutchins was diagnosed with the disorder after returning to the United States was not unusual. The defense team that included a civilian lead lawyer and two military lawyers, however, was interested in how Hutchins' psychiatric condition might relate to the charges against him. One of the marine defense attorneys volunteered to address this issue and consulted a psychiatric expert witness (the author). As stated above, the Uniform Code of Military Justice and the MCM allow for the complete defense of “lack of mental responsibility.” Whereas mental disease or defect does not otherwise constitute a complete defense, there are other areas in which a mental condition may apply. For example, his attorney asked the psychiatric expert if Hutchins was laboring under sufficient psychological stress to have committed the act out of rage sufficient to categorize the killing as voluntary manslaughter (in military parlance, “heat of passion”), or was Hutchins in a psychological state that did not permit him to form specific intent necessary to commit premeditated murder (“partial mental responsibility”)? Finally, the defense explored a third possible hypothesis related to whether

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Hutchins believed that he was acting in self-defense much akin to what has become known as the “battered spouse defense” (United States of America v Hutchins, 2010; United States v. Hutchins, 2010a). Selfdefense is considered a “justification” whereby the defendant accepts responsibility but denies bad behavior. As has been shown, “partial mental responsibility” is commonly referred to in the U.S. as diminished capacity or the mens rea defense. It refers to the mental state required by the definition of the offense that produces or threatens harm. The concern of criminal law is with the level of intentionality with which the defendant acted — in other words, with what the defendant intended, knew or should have known. Psychiatric testimony suggesting that a defendant lacked the state of mind necessary to be proven an element of the offense often focuses on the presence or absence of awareness (e.g., the perpetrator's general capacity to form intent), rather than the actual ability to form intent at the time of the crime, and, as a result, is irrelevant (Morse, 1984). Specific intent requires intentional unlawful action. Under the Uniform Code of Military Justice (UCMJ), it is murder when the accused had either the intent to kill, or to inflict grave bodily harm, and it was done with knowledge (Manual for Courts-Martial United States, 2012i). Premeditation is not necessary. As a result, it was difficult to argue that Hutchins lacked specific intent to kill because the defense would have to maintain that Hutchins performed the act without intent, knowledge or purpose. Under the UCMJ, if the killing was committed under the heat of sudden passion caused by adequate provocation, it can be characterized as the lesser crime of voluntary manslaughter, rather than murder (Manual for Courts-Martial United States, 2012h). As has been shown, the UCMJ allows that “heat of passion” may result from fear or rage. Clearly, it was difficult for the defense to argue that Hutchins was in the throes of heat of passion when the crime was committed, therefore, this line of reasoning was not pursued. The fact that Hutchins and his unit were under extreme stress was evident; as a result, a third more novel, and it was thought, more appropriate defense was discussed and considered. 2. Self-defense Mental health forensic testimony regarding “battered woman syndrome” has parallels to the Hutchins case. The Model Penal Code allows a defendant asserting self-defense to demonstrate that his/her responses were subjectively reasonable (e.g., that he/she believed that the use of force was necessary). Ordinarily, self-defense requires an individual to prove that he or she was operating under the reasonable belief of imminent harm. In the UCMJ, under the heading “loss of right of self-defense,” the right is lost if the accused “was an aggressor, engaged in mutual combat or provoked the attack which gave rise to the apprehension…” The accused also has the right to defend another, but “may not use more force than the person defended was lawfully entitled to use under the circumstances” (Manual for Courts-Martial United States, 2012f). Recently, however, some abused women who had killed in nonconfrontational situations have been relieved of criminal liability because they had developed the belief that they were helpless to control their fate and did not perceive escape options. When a woman, for example, kills a sleeping husband who had been her abuser, although the act had been premeditated and time for a “cooling off” period had occurred, she does so because she never feels safe. The woman's ability to manage peacefully the situation is significantly impaired because she realizes the violence directed against her is not only irrational, but also not contingent on her behavior. The woman may thus develop the belief that if she does not proactively kill, she will eventually be killed (Blowers & Bjerregaard, 1994; Brakel & Brooks, 2001). Civilian courts in 31 U.S. states have allowed testimony on battered woman syndrome. (Shuman, 2003). Several states begin by resolving whether or not such testimony is admissible explicitly as a matter of

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law and most jurisdiction that recognize battered woman syndrome allows the concept as part of a self-defense defense where imminent threat is not necessary. Battered woman syndrome may also be used in sentence mitigation, especially when the facts fall short of establishing a full legal defense (Shuman, 2013). Sgt. Hutchins and his squad believed that they had to act proactively to diminish the violence against them, quite literally a matter of life or death. Sgt. Hutchins was trying to defend his squad. According to the UCMJ, defense of others is a legitimate justification. There was no escape option and the soldiers' plan was to eliminate a primary threat and/or send a message to their adversary. Sgt. Hutchins' subsequent development of PTSD is explicit evidence that he was experiencing significant stress. 3. Daubert hearing A Daubert (Daubert, 1993) hearing is an evaluation by a trial judge on the admissibility of defined “expert”, or scientific or technical testimony or other evidence. The Daubert hearing is conducted out of the jury's presence and is usually based on a motion in limine (preliminary matter) that occurs before the trial begins and determines which testimony or other evidence will be presented to the jury. It is most efficient if the Daubert motion takes place after the discovery phase so the hearing is completed before the trial starts. The term comes from Daubert v. Merrell Dow Pharmaceuticals (Daubert, 1993), a U.S. Supreme Court decision that articulated standards for expert testimony under the “Federal Rules of Evidence” adopted in 1975 (Federal Rules of Evidence). A Daubert hearing was held in the Hutchins case to determine the validity and applicability of mental health testimony. The defense had not filed a brief with the court prior to the hearing, “much to the military judge's displeasure” (United States v. Hutchins, 2010a); as a result, there was confusion about what the defense intended to offer regarding mental health evidence. The possibilities included: 1) negation of specific intent; 2) demonstration of self-defense; and 3) demonstration of heat of passion. Each avenue was problematic. Daubert's five-prong assessment of testability, established standards of measurement, known error rate, peer review/publications, and general acceptance is difficult to establish. At the hearing, it was difficult to determine what the defense was seeking to present because, based on the expert witness testimony, it appeared that they were laying the groundwork for an insanity defense even though the defense team had earlier decided that Hutchins did not meet the MCM “lack of mental responsibility” rule. At the discretion of the civilian defense lawyer, who was the lead attorney, there was no expert testimony related to self-defense. And, at the conclusion of the hearing, the military judge refused to allow further testimony regarding specific intent (“partial mental responsibility”) because the defense was never able to coherently identify “a nexus between PTSD and specific intent” (United States v. Hutchins, 2010a, p. 45). As a result, in regard to the possible mental incapacity defenses discussed above, the defendant was left with a heat of passion defense and the mental health expert was instructed to limit his testimony to those parameters at trial (United States v. Hutchins, 2010a). 4. Hutchins decision On August 2, 2007, military court-martial found Sgt. Hutchins guilty of unpremeditated murder (von Zielbauer, 2007). In addition he was found guilty of conspiracy to commit murder, making a false official statement and larceny. He was acquitted on charges of kidnapping, assault, and house breaking. He was sentenced to 15 years in military prison which was the longest sentence given to any of the conspirators in the case and the only additional confinement beyond time-served given to any of the three marines who went to trial: Hutchins, Thomas and Magincalda. Lt General Samuel Helland, commanding general of the United States Marine Corps, Central Command, turned down a

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request to issue Hutchins a pardon, but did reduce the sentence to 11 years (United States v. Hutchins, 2010a). Hutchins appealed to the US Navy-Marine Corps Court of Criminal Appeals in Washington, D.C. On May 20, 2009, the appeals court ordered a DuBay hearing into the issue of the appellant's representation by his marine attorney. A DuBay hearing is taken from U.S. v DuBay, a 1967 military court decision that established procedures in court-martial for hearings to determine issues raised collaterally that require findings of fact and conclusions of law. Such hearings are commonly referred to as DuBay hearings. After the hearing, the Court of Appeals overturned Hutchins' convictions on an 8–1 en banc ruling, because Hutchins' principal military attorney was allowed to leave the case just before it went to trial, effectively killing the self-defense strategy that the principal military defense attorney had planned to bring forward (United States of America v Hutchins, 2010). After the decision, Hutchins was released to return to active duty (Watson, 2010). In response, the military prosecutors, on behalf of the Judge Advocate General of the Navy, appealed the lower court's ruling to the Court of Appeals of the Armed Forces and both parties filed briefs to the High Court (United States v. Hutchins, 2010a,b). The defense brief, in part, argued that the premature departure of the Marine Corps' defense attorney prevented the defense from bringing forward key components of its mental health selfdefense defense. In January, 2011, the High Court overruled the decision of the Court of Criminal Appeals, saying that the departure of the military attorney was not grave enough to throw out the conviction. The case was sent back to the Court of Criminal Appeals to determine whether it could be shown that Hutchins' defense team had been ineffective (United States v Hutchins, 2011). Thus, Hutchins was ordered back to prison to serve the remaining years of his 11-year sentence. Hutchins had spent nearly four years in prison before being released. The others in his squad had served less than 18 months. A Navy clemency and parole board had noted in 2009 that Hutchins' sentence was unjustifiably severe compared to other war crimes cases, but the board concluded that it was likely due to his perceived lack of remorse during his trial. Hutchins' appellate defense lawyer said that his client is, and was, deeply remorseful (Watson, 2011). The case was re-docketed with the Court of Criminal Appe`als on February 17, 2011, and the court later affirmed the court-martial's original findings and sentence, reversing its own en banc ruling (United States v Hutchins, 2012a). On March 26, 2012, Hutchins filed a petition for grant of review with the United States Court of Appeals for the Armed Forces and briefs were subsequently filed by the appellant [Hutchins] and the appellee [U.S.] (United States v. Hutchins, 2012; United States v. Hutchins, 2012b,c). On June 26, 2013, the Appeals Court overturned Hutchins conviction, this time supporting his claim that his rights were violated when he was held in solitary confinement without access to a lawyer for seven days during his 2006 interrogation in Iraq. Sgt. Hutchins subsequently walked out of the brig at the Marine Corps Miramar Air Station in San Diego on July 19, 2013 and returned to active duty. The case, however, is not closed. The Navy can order the case retried or prosecutors can appeal to the U.S. Supreme Court (Watson, 2013). 8. Conclusion Although PTSD is a legitimate mental health disorder, we have shown that its use as a justification, excuse, or failure of proof defense in criminal cases has limitations. It may be offered as an excuse by the defense when it is actually an explanation and the diagnosis tends to be liberally applied by mental health evaluators. We have also seen that malingering and misattribution are ongoing concerns. The Hutchins case is but one example of PTSD being brought forward by the defense at a military court-martial or in civilian court (Frierson, 2013; Manning, 2012; Nelson, 2012; North, 2009; Robson, 2008; State v. Harrell; State v Gray; State v Bratcher; Lawrence & Rizzo, 2012; Murphy, 2009; Porter v. McCollum, 2009; Sullivan, 2009). If legitimate,

the development of PTSD may be secondary to complex circumstances but at least indicates that an individual was at one time under significant stress and the magnitude of that stress will most likely dictate the severity of subsequent PTSD symptoms (van der Kolk, 1996). It has been shown that psychic trauma may occur not only from experiences of nearly being killed, but also from killing another person (Marin, 1981). The use of PTSD in service of a self-defense defense in the Hutchins' case was at least worthy of consideration. Self-defense has been allowed under circumstances when the defendant is the aggressor in civilian courts, and is allowed under the UCMJ to defend others. Given the complexity of the use of PTSD as a credible criminal defense, its use in the courtroom may be best suited as a mitigating factor akin to “diminished capacity” in the Federal Sentencing Guidelines whereby sentences may be reduced if the defendant was in the throes of “significantly reduced mental capacity” (U.S. Sentencing Guidelines Manual, 2012). The author wishes to thank Peter Krug, J.D., Ph.D. for his excellent editorial assistance.

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